Microsoft has recourse to an arsenal of legal remedies for stopping the distribution of the recently leaked Windows 2000 source code and, if it chooses to do so, punishing those who have handled the code, according to a legal expert.
On Thursday, a 203MB file containing some of Microsoft's closely guarded source code was published on the Internet, representing around 1 percent of the code base of Windows 2000, the enterprise operating system on which Windows XP is based.
Industry analysts say the code is unlikely to reveal new security holes or to damage Microsoft competitively, its only real effect being bad publicity. "Its biggest impact is purely as an embarrassment," says Ovum principal analyst Graham Titterington. "A partial leak of source code is not of much use to anybody. Even if someone sees a potential flaw, it still doesn't give them a picture of the overall system."
Microsoft can argue that those spreading the leaked source code are breaking several intellectual property laws, including those related to confidentiality and copyright, according to Mark Watts, IT partner with Bristows. "There is no shortage of legal theories that Microsoft could rely on to prevent either the source code remaining on a Web site or being further distributed," he says.
Copyright infringement would affect anyone that knowingly distributes or handles infringing copies. Because of the nature of digital media, obtaining a copy of the source code involves making a copy, notes Watts.
He said the definition of copying is broad, including having a copy stored on one's hard drive. As for whether the copy was made knowingly, "it would be pretty hard for somebody to argue they weren't aware that this was an infringing work," he says.
Besides civil penalties, involving the payment of damages and an injunction against further infringement, handling infringing works could be prosecuted under criminal laws, according to Watts. Microsoft has said it is discussing the leak with law enforcement officials.
The amount of code being copied is not necessarily an issue, if the code is a substantial part of the operating system. "They would assess whether the bit you're talking about is substantial with relation to the entire copyrighted work. They don't just count the lines of code, generally the focus is on the quality of the bit taken," Watts says. For example, in the Mona Lisa, the smile is a small portion of the painting but could be considered a substantial part.
